Footballer Joey Barton signed a two-year contract in the spring of this year for Rangers Football Club which should have seen him play until the summer of 2018. Fans were hopeful that he would make a big impact in the Scottish Premier League. Instead, following allegations of a training ground dispute, a disciplinary investigation, a six-week suspension, a reinstatement to train with the youth team, and an absence due to stress, a "mutual agreement" was reached recently to terminate his employment with the club after only 133 days, and without further comment by either party.
The situation attracted a significant amount of media attention. However, if we strip away the public profile of the parties involved, a fairly typical scenario remains: an organisation finding itself in a stalemate when trying to discipline an employee.
For employees, a disciplinary investigation can be a daunting process. They may feel aggrieved that the company considers their behaviour to amount to misconduct or they may perceive that their future employment is at risk. If the organisation feels it has a strong case against the employee, it will want to proceed as quickly as possible to resolve the matter and move on. However, for an employee, particularly one who feels that the outcome has already been determined, there is little incentive to engage with the process. On the contrary, as the employee will remain on full pay until a decision is reached, this can result in requests to postpone proceedings through last minute call-offs or the submission of a fit note.
An employer is entitled to require a suspended employee to attend disciplinary meetings during normal working hours, but the organisation would be expected to reschedule a hearing on at least one occasion if the employee provides a good reason for the postponement. This does not mean the employer is under an obligation to postpone disciplinary proceedings indefinitely. The organisation can proceed with a hearing in the employee's absence if it is reasonable to do so, and the employee has been warned that the hearing will go ahead regardless of their attendance. However, in such circumstances an internal paper trail documenting the consideration the organisation gave to any postponement request, and a reason for continuing in the employee's absence, will be required in the event of a claim.
The process is more complicated where an employee is unable to engage with the disciplinary process due to ill health. In such circumstances, the employer should make it clear that the employee's absence does not change the fact that he or she remains suspended pending a disciplinary investigation.
The next step for consideration will be whether the absence can be reasonably accommodated by a short postponement. Where the absence appears likely to last for a longer term, the employer should look to clarify the situation. Being unfit for work does not necessarily mean unfit to participate in a disciplinary process: the employer should question the employee, their GP and/or occupational health adviser to determine whether this is the case. The employer can also look to make adjustments to the process, such as permitting the employee to provide written submissions rather than attending a hearing in person, to move the process forward despite the employee's ill health.
Where the employee is genuinely unable to engage with the process in any way, the employer must determine whether or not it is necessary to continue in the absence of the employee. Consideration will need to be given to the importance of having the matter resolved, the impact on any other individual involved and the potential impact to the business of the employee’s continuing absence/suspension. Documentation of these considerations will, again, be important.
While no employer is able to foresee every eventuality, the potential for a protracted disciplinary process is something that employers should be alive to. If the alleged misconduct is sufficiently serious, or if the business feels that the relationship with the employee has irreparably broken down, there can be merit in considering a "mutual agreement" with the employee as an alternative solution. In many scenarios, an employer will be reluctant to effectively reward the misconduct of an employee. However, returning to Joey Barton as an example, his reported salary would have cost Rangers in the region of £120,000 during his suspension. Combined with the management time and effort involved in a disciplinary process, or even a portion of it, this cost may have been better spent on focusing on an agreement at an early stage, rather than keeping the employee away from work.
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